International Lawyer Law Firm

PLJ 2011 Lahore 894
[Multan Bench Multan]

Present: Rauf Ahmad Sheikh, J.

Mst. KAUSAR PARVEEN through General Attorney--Petitioner

versus

RASHEED AHMAD and 45 others--Respondents

C.R. No. 557-D of 2011, decided on 23.5.2011.

Partition Act, 1893(IV of 1893)--

----Ss. 2 & 3--Civil Procedure Code, (V of 1908)--S. 115--Civil revision--Suit for partition--Property was not partitionable--Purchase of specific portion in house and acceptation of same had been dealt in preliminary decree--Option to purchase entire property--Order for sale of property through auction was passed by trial Court--Challenge to--Validity--If Court arrived at conclusion that property was not divisible then might pass an order u/S. 2 of Partition Act, for putting to sale and distribution of sale proceeds to shareholders according to their entitlement--Of course, in order to avoid transfer of property to a third person, u/S. 3 of Act, 1893 one or more co-sharers had right to purchase entire property but in instant case, petitioner had not availed of that offer--Petitioners had got time to settle the matter by private negotiations but no fruitful result could be achieved--Trial Court was not left with any other option but to put property to acution--Impugned order passed by Courts below did not suffer from any illegality or infirmity--Revision was dismissed. [P. 896] A & C

Civil Procedure Code, 1908 (V of 1908)--

----O. XX, R. 18(2)--Partition Act, (IV of 1893), Ss. 2 & 3--Suit for partition--Property was not partitionable--Rights of parties--Validity--After passing of preliminary decree declaring rights of the parties, u/O. XX, R. 18(2), CPC in a suit for partition, Court has to proceed further to partition it and then pass the final decree accordingly.  [P. 896] B

Malik Asif Iqbal, Advocate learned counsel for Petitioner.

Date of hearing: 23.5.2011.

Order

The petitioner has assailed the vires of the order dated 21.04.2011 passed by the learned Civil Judge, Chichawatni, whereby he directed that the suit property be put to auction and judgment dated 07.05.2011 passed by the learned ADJ, Chichawatni, whereby appeal filed by the appellant was dismissed.

2.  The facts in brief are that a suit for partition was filed by Jann Muhammad etc against the present petitioner and others for partition of House No. 488 measuring 08-marlas & 07-s.ft fully described in Para No. 1 of the plaint. It was contended that due to joint ownership the quarrel takes place between the parties every day. The Defendants No. 1 to 9 did not contest the suit, whereas the petitioner contested the suit and contended that she had purchased a specific portion in the house so her portion cannot be divided and the remaining property may be divided amongst the other owners. Subsequently, the preliminary decree was passed by consent of the parties including the Defendant No. 10/petitioner. Thereafter Mr. Ghulam Hussain Khokhar, Advocate was appointed as the local commission, who reported that the property was not divisible. The petitioner moved an application praying therein that she be given some time to purchase the property. On 07.04.2011 her learned counsel got a statement recorded that she is ready to purchase the total property and if she could not purchase it, it may be sold to some other person. On 18.03.2011 the petitioner was given another opportunity to make private settlement but finally her general attorney made a statement that she was not in a position to purchase the entire property as she did not have sufficient means. In these circumstances, the learned trial Court passed an order for sale of the property through auction.

3.  The learned counsel for the petitioner has contended that unless the final decree is passed, the order to hold auction is illegal and unwarranted. It is urged that the Defendant No. 10/petitioner is in occupation of a specific portion, which was purchased by her and as such the same could not be made subject matter of the partition proceedings and by separating her portion, the remaining property may be divided to the other shareholders. It is urged that her portion is more valuable and if the same is alienated along with remaining portion, she would suffer irreparable loss. In support of the contention raised reliance is placed on 2008 CLC 248.

4.  I have heard the learned counsel for the petitioner at length and perused the record carefully.

5.  The learned trial Court has given resume of the events in its order dated 21.4.2011. It is clear that the petitioner was given an option to purchase the entire property. She was given adjournments and sufficient time for this purpose. Finally the learned trial Court passed an order for holding the auction only when her general attorney frankly conceded that she was not in a position to purchase the entire property. It is not contended that the property is not partition-able. The purchase of her specific portion in the house and occupation of the same has been dealt in the preliminary decree which according to the impugned order was passed by the consent of all shareholders. In these circumstances, after the preliminary decree and holding that the property was not divisible, the learned trial Court had given an option to the petitioner to purchase the entire property so the requirements of Section 3 of the Partition Act, 1893 have been complied with. If the Court arrives at the conclusion that the property is not divisible then may pass an order under Section 2 of the Act ibid for putting the same to sale and distribution of the sale proceeds to the shareholders according to their entitlement. Of course, in order to avoid the transfer of the property to a third person, under Section 3 of the Act ibid one or more co-sharers have the right to purchase the entire property but in this case the petitioner did not avail of this offer. She also got the time to settle the matter by private negotiations but no fruitful result could be achieved. Finally her attorney had expressed her inability to purchase the entire property due to non availability of funds. In these circumstances, the learned trial Court was not left with any other option but to put the property to auction. The case law cited at the bar is based on different facts. After passing of the preliminary decree declaring the rights of the parties under Order XX Rule 18(2) CPC in a suit for partition, the Court has toproceed further to partition it and then pass the final decree accordingly. In this case all necessary steps and pre-cautions were taken by the learned trial Court and the petitioner was given ample chances to purchase the property but she expressed her inability in this regard. Neither it was contended in the grounds of appeal that she was still willing to purchase the entire property, nor it has been so contended before this Court. In these circumstances, the impugned order passed by the learned trial Court and judgment of the first learned appellate Court do not suffer from any illegality or infirmity. No irregularity has been caused. The civil revision is without merits and the same is hereby dismissed in limine.

(R.A.)  Revision dismissed.